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Dr. Absarul Hasan Kidwai: Ors. vs. State of Gujarat and Ors, Reported in (2006) 3 SCC 374 at 395. The Supreme
Dr. Absarul Hasan Kidwai: Ors. vs. State of Gujarat and Ors, Reported in (2006) 3 SCC 374 at 395. The Supreme
DEPARTMENT OF LAW
ALIGARH MUSLIM UNIVERSITY, ALIGARH
CRIMINAL PROCEDURE CODE - 1
B.A.LL.B. (HONS) VIIIth SEMESTER
UNIT-I:
Introduction
The Fair Trial is one of the corner stones of a just society. Without fair trials, innocent
people are convicted and the rule of law and public faith in the justice system collapses.
It is a key role of any Government to maintain Law and Order on behalf of the whole
society. In a Democratic society, even the rights of the accused are sacrosanct. The
rational of ‘fair trial’ means that people can be sure that process will be fair and certain,
it prevents Government from abusing their powers. In Zahira Habibullah Sheikh and
Ors. Vs. State of Gujarat and Ors, reported in (2006) 3 SCC 374 at 395. The Supreme
Court of India observed “each one has an inbuilt right to be dealt with fairly in a
criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the
victim and to society. Fair trial means a trial in which bias or prejudice for or against
the accused, the witness or the cause which is being tried, is eliminated.”
Procedure Code or under Section 165 of the Indian Evidence Act, 1872 to call
in for the material witness and procure the relevant documents so sub serve the
cause of justice. [Himanshu Singh Sabharwal Vs. State of M.P. Ors, reported
in MANU/SC/1193/2008]
The basic principle of the right to a fair trial is that proceedings in any criminal
case are to be conducted by a competent, independent and impartial court. In a
criminal trial, as the state is the prosecuting party and the police is also an
agency of the state, it is important that the judiciary is unchained of all suspicion
of executive influence and control, direct or indirect.
The primary principle is that no man shall be judge in his own cause. Section
479 of the Criminal Procedure Code, prohibits trial of a case by a judge or
magistrate in which he is a party or otherwise personally interested.
For ensuring fair trial, it has to be checked whether there exists a circumstance
according to which a litigant could reasonably apprehend that a bias attributable
to a judicial officer must have operated against him in the final decision of the
case and not that if a bias could have affected the judgement. [Shyam Singh Vs.
State of Rajasthan reported in 1973 Crl. LJ 441, 443 (Raj)]
Presumption of Innocence
Every criminal trial begins with the presumption of innocence in favour of the
accused. The burden of proving the guilt of the accused is upon the prosecution and
unless it relieves itself of that burden, the courts cannot record a finding of the guilt
of the accused. This presumption is seen to flow from the Latin legal principle ei
incumbit probatio qui dicit, non qui negat, that is, the burden of proof rests on who
asserts, not on who denies.
State of U.P. Vs. Naresh and Ors reported in (2001) 4 SCC 324, the Supreme Court
observed “every accused is assumed to be innocent unless his guilt is proved. The
presumption of innocence is a human right subject to the statutory exceptions.
DR. ABSARUL HASAN KIDWAI
The concept of double jeopardy is based on the doctrine of 'autrefois acquit' and
'autrefois convict' which mean that if a person is tried and acquitted or convicted of
an offence he cannot be tried again for the same offence or on the same facts for
any other offence. This clause embodies the common law rule of nemo debet vis
vexari which means that no man should be put twice in peril for the same offence.
Section 300 of the Code of Criminal Procedure provides that persons once
convicted or acquitted not to be tried for the same offence or on the same facts for
any other offence.
Fair Trial requires that the accused person is given adequate opportunity to defend
himself. But, this opportunity will have no meaning if the accused person is not
informed of the accusation against him. The Criminal Procedure Code therefore
provides in Section 228, 240, 246, 251 in plain words that when an accused person
is brought before the Court for trial, the particulars of the offence of which he is
accused shall be stated to him.
The information must also be provided to the accused in a language which s/he
understands, meaning that translation is mandated and that its form, oral or written,
will depend on the manner in which the “charge” is initially conveyed.
In case of serious offences, the court is required to frame in writing a formal charge
and then read and explain the charge to the accused person. A charge is not an
accusation in abstract, but a concrete accusation of an offence alleged to have been
committed by a person. The right to have precise and specific accusation is
contained in section 211 Cr.P.C.
DR. ABSARUL HASAN KIDWAI
In the determination of any criminal charge against him or her everyone is entitled
“To have adequate time and facilities for the preparation of his defense and to
communicate with counsel of his own choosing”.
Fair Trial also requires public hearing in an open court. The right to a public hearing
means that the hearing should as a rule is conducted orally and publicly, without a
specific request by the parties to that effect.
Section 327 of the Criminal Procedure Code makes provision for open courts for
public hearing but it also gives discretion to the Presiding judge or magistrate that
if he thinks fit, he can deny the access of the public generally or any particular
person to the court during disclosure of indecent matter or when there is likelihood
of a disturbance or for any other reasonable cause.
In the case of Naresh Sridhar Mirajkar Vs. State of Maharashtra reported in AIR
1967 SC 1, the apex court observed that the right to open trial must not be denied
except in exceptional circumstances.
The requirement of fair trial involves two things: a) an opportunity to the accused
to secure a counsel of his own choice, and b) the duty of the state to provide a
counsel to the accused in certain cases. The Law Commission of India in its 14th
Report has mentioned that free legal aid to persons of limited means is a service
which a Welfare State owes to it citizens.
The right to be defended by a legal practitioner, flowing from Article 22(1) of the
Constitution has further been fortified by the introduction of the Directive
Principles of State Policy embodied in Article 39 A of the Constitution by the 42nd
Amendment Act of 1976 and enactment of sub-section 1 of Section 304 of the Code
of Criminal Procedure. Legal assistance to a poor person facing trial whose life and
DR. ABSARUL HASAN KIDWAI
personal liberty is in jeopardy is mandated not only by the Constitution and the
Code of Criminal Procedure but also by International Covenants and Human Rights
Declarations.
In Khatri Vs. State of Bihar reported in (1981) 2 SCC 493, the court held that the
accused is entitled to free legal services not only at the stage of trial but also when
first produced before the Magistrate and also when remanded.
Speedy Trial
Speedy trial is necessary to gain the confidence of the public in judiciary. Delayed
justice leads to unnecessary harassment. Sec.309(1) provides “in every inquiry or
trial, the proceedings shall be held as expeditiously as possible, and in particular,
when the examination of witnesses has once begun, the same shall be continued
from day to day until all the witnesses in attendance have been examined, unless
the Court finds the adjournment of the same beyond the following day to be
necessary for reasons to be recorded.”
Section 50 provides that any person arrested without warrant shall immediately be
informed of the grounds of his arrest. The duty of the police when they arrest
without warrant is to be quick to see the possibility of crime, but they ought to be
anxious to avoid mistaking the innocent for the guilty.
In Pranab Chatterjee Vs. State of Bihar reported in (1970) 3 SCC 926, the court
held that Section 50 is mandatory. If particulars of offence are not communicated
to an arrested person, his arrest and detention are illegal.
For the conduct of a fair trial, it is necessary that all proceedings related to the case
should take place in the presence of the accused or his counsel. The underlying
DR. ABSARUL HASAN KIDWAI
principle behind this is that in a criminal trial the court should not proceed ex parte
against the accused person.
The Courts should insist upon the appearance of the accused only when it is in his
interest to appear or when the court feels that his presence is necessary for effective
disposal of the case. Court should see that undue harassment is not caused to the
accused appearing before them. Section 273 of the Criminal Procedure Code
provides that all evidence taken in the course of the trial shall be taken in the
presence of the accused or if the personal attendance of the accused is dispensed
with then the evidence shall be taken in the presence of his pleader.
Right to Bail
By virtue of Section 436 the accused can claim bail as a matter of right in cases
which have been shown as bailable offences in the First schedule to the Code. Bail
is basically release from restraint, more particularly, release from custody of the
Police. An order of bail gives back to the accused freedom of his movement on
condition that he will appear to take his trial.
But bail under Section 389(1) after conviction is not a matter of right whether the
offence is bailable or non-bailable reported in Shambhu Vs. State, AIR 1956 AII
633.
“Everyone convicted of a crime shall have the right to his conviction and sentence
being reviewed by a higher tribunal according to law”.
whether the offence is bailable or nonbailable and should be allowed only when
after reading the judgment and hearing the accused it is considered justified.
Conclusion
The judge is not to draw any inferences against the accused from the fact that he
has been charged with a crime. He must decide the case solely on the evidence
presented during the trial. It is well settled that while dealing with a judgment of
acquittal, an appellate court must consider the entire evidence on record so as to
arrive at a finding as to whether the views of the trial court were perverse or
otherwise unsustainable.
“Equality, Justice and Liberty” is the trinity of fair trial recognized in the
administration of justice of India where the affluent and the “lowly and lost” have
the equality of access to justice in the administration of justice in general and the
criminal justice system in particular. This fundamental principle of fair trial is the
backdrop of the International Covenants, and enjoined in the Constitution of India
as well as the criminal laws devising the criminal justice system of India.
DR. ABSARUL HASAN KIDWAI
Classes of Courts
Apart from the Supreme Court and High Courts, the following criminal courts have
been described under section 6 of Criminal Procedure Code, 1973:
1. Court of Session
2. Judicial Magistrate of first class and, in any metropolitan area Metropolitan
Magistrates
3. Judicial Magistrate of second class; and
4. Executive Magistrates
Section 7(1) of Criminal Procedure Code 1973 states that “The State Government shall
establish a Court of Session for every session’s division. In the hierarchy Sessions court
is followed by Judicial Magistrate Class I and then judicial magistrate of Class II. In
metropolitan areas, it is followed by Chief Metropolitan Magistrate and metropolitan
magistrate. An Executive Magistrate is one of the classes of courts only while
performing judicial functions.
At the point when an individual submits offences, to such an extent that he might
be accused of, attempted at one trial for, each such offence as per the arrangements
of section 219, section 220 or section 221.
At the point when the offences or offences have been submitted by a few people,
in a way that the Court may charge and attempt them together, as per the
arrangements of section 223.
Section 185 arrangements with the intensity of the State Government, as indicated by
which the legislature can coordinate that any cases or class of cases which have been
submitted for trial in any region, might be attempted in a sessions court.
It needs to guarantee that such heading isn’t conflicting with any of the bearings which
have been as of now given by some other Superior Court, according to the Constitution,
or as referenced under the Code of Criminal Procedure or under some other law for the
present in power.
Section 186 tends to the circumstance wherein the awareness of a specific offence has
been taken by at least two courts and perplexity emerges concerning which of the
Courts will ask into or attempt that offence, in such a case, just the High Courts have
the position to determine the disarray. The criteria for settling such issues are as per the
following:
In the event that a similar High Court administers the courts in question, at that
point by that High Court.
In the event that a similar High Court doesn’t oversee the courts in question, at that
point, by the High Court which initially initiated the procedures as a re-appraising
criminal court. From that point, the various procedures in regard to that offence will
be stopped.
Section 187 states the intensity of a Magistrate to give summons or warrant for offences
which have been submitted past his neighbourhood jurisdiction. In such a circumstance
DR. ABSARUL HASAN KIDWAI
the Magistrate has the power to request such an individual to be created before him and
afterwards send him to the Magistrate of able jurisdiction.
The conditions identified with the offences when submitted outside the domain of India
have been managed under section 188. As per this section, when an offence is
submitted outside India-
by an individual, not being such resident, on any ship or airship enrolled in India.
Such an individual might be treated in regard of such offence as though it had been
submitted at wherever inside India and at such a spot, where he might be found. The
stipulation to this section determines that no such offence will be asked into or
attempted in India without the past approval from the Central Government.
The most significant factor in the previously mentioned arrangement is where the
offence has been submitted. Section 188 explicitly manages the situation when the
offence is submitted outside India. These offences must be esteemed to have been
submitted in India, whenever submitted by an Indian resident, in high oceans or in some
other spot.
At the point when the arrangements of Section 188 are relevant, at that point the Central
Government may, in the event that it regards fit, direct that the duplicates of affidavits
or displays given to a legal official or before a strategic or consular delegate of India in
or for that domain will be gotten as proof by the Court holding such request or trial
regardless in which such Court may give a commission for accepting proof with regards
to the issues to which such statements or shows related.
Section 188 and Section 189 ought to be perused together. They continue on the
premise that a criminal is in India and can be found anyplace in India. The Court needs
to discover the blamed and the seeing for the denounced has as done where the charged
shows up.
DR. ABSARUL HASAN KIDWAI
It is obvious from the above section that the denounced can’t be found by a minor
protest or by the Police. Further, it is by outlandish for the casualty of an offence
submitted outside India, to visit India and attempt to determine the area of the
denounced and afterwards approach the court. The parity of comfort is higher on such
an injured individual. Hence, all such focuses have been considered while drafting
Section 188 and Section 189 of the Code of Criminal Procedure.
The said unfortunate casualty has been vested with the privilege to move toward any
Court in India as indicated by his comfort and document a case in regard to the offence
submitted upon him by an Indian abroad.
On account of Reg v. Benito Lopez[1858 Cr LC 431], the issue identified with the
jurisdiction of English Courts for the offences submitted on the high oceans by
outsiders who are going in England borne ships was addressed. It was held that the
nation which attempted the blamed turned out poorly its jurisdiction. The choice
featured the significant rule of International Law that an individual is at risk to be
rebuffed of every single such offence, which he has submitted independent of where it
is submitted.